TMI Blog2006 (9) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... 999. The children of Kadarappa, Gurudas and Others, and their sons, Sagunarthy and Shivarthy, are the Appellants in Civil Appeals arising out of SLP (C) No. 12 of 2006 and 843-44 of 2006 respectively. The properties involve Survey No. 97/2 Old No. 46-C, Doddabylakhana, Lalbagh Road, Bangalore and Survey No. 66 and 75/1, Sarakki, Uttarhalli Hobli, Bangalore. The purported adoption of Nirmala by Obalappa is in question in the suit. It is, however, not in dispute that on or about 12.9.1947, Obalappa had executed a deed of gift in favour of Nirmala showing her as daughter of Kadarappa but under his guardianship whereas the heirs of Nirmala claimed that Nirmala inherited the property on his death, which as noticed hereinbefore took place in 1949. According to the Appellants, the joint family property devolved by survivorship to Kadarappa. A purported partition took place between Kadarappa and his sons on 15.6.1954. Nirmala was not given any share therein. It is stated that she was not entitled thereto. The property bearing Survey No. 97/2 is said to have been acquired by Brahmanandadas by way of a deed of sale executed by Khaja Ghulam Sheriff from 18.07.1955. It is furthermore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003, the Appellants herein were restrained in dealing with the properties directing: I.A. No. 1 is allowed. No costs. Order of temporary injunction is passed in favour of the plaintiffs restraining defendant No. 25 from putting up any construction on Item No. 1 of Schedule A and further not alienate any portion thereof in favour of any one by himself or through hits agents. I.A. No. XI is allowed. No costs. Order of temporary injunction is passed in favour of the plaintiffs restraining the defendants, their men, from alienating or altering the nature of the suit schedule properties. On or about 18.03.2003, the High Court passed an interim order directing that no alienation would take place, save and except the share of the builders. The said order was modified by an order dated 29.09.2005 directing that the development of the said property would be subject to restriction in regard to dealing therewith. An application for modification of the said order was filed which has been dismissed by an order dated 15.11.2005. Mr. Mukul Rohtagi and Dr. Rajeev Dhawan, learned senior counsel appearing on behalf of the Appellants, inter alia would submit that the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uo passed by the court. It was argued that the question as regard illegality of adoption cannot be permitted to be raised for the first time before this Court. In any event, the Appellants having filed an application for rejection of the plaint in terms of Order VII, Rule 11 of the Code of Civil Procedure, the same having been dismissed, they should not be permitted to raise the said contention once again. It was contended that before the appellate court an interim order was passed on the basis of agreement between the parties, it is, therefore, inequitable to allow the parties to take a different stand before this Court. While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to: (i) Prima facie (ii) Balance of convenience (iii) Irreparable injury. A finding on 'prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction; no factories would be closed and no workpeople would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy. We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke [(1996) 1 All ER 853] opined: In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Nirmala Dhari is valid under law. Under the circumstances, the issue as to the ancient Hindu Adoption has to be investigated during the trial. The plaintiffs have established a trivial case i.e. prima-facie case in my opinion. While arriving at the said finding, the court referred the following passage from Mayne's Treatise on Hindu Law and Usage, 13th edition, pages 429-430: Adoption of daughters Nandapandita in his Dattaka Mimamsa would construe 'putra' (or son) as including a daughter and he draws the inference that on failure of a daughter, a daughter of another could be adopted. He supports his conclusion by referring to ancient precedents, such as the adoption of Shanta, the daughter of King Dasaratha by King Lomapada and the adoption of Pritha or Kunti, the daughter of Sura by Kunti Bhoja. This view is sharply criticized by Nilakantha in the Vyavahara Mayukha. It is now settled that the adoption of a daughter is invalid under the Hindu law. (Underlining is ours for emphasis) However, it appears that the learned Judge missed the last sentence of the said passage i.e. It is now settled that the adoption of a daughter is invalid under the Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the stage of grant of injunction, however, the effect of dismissal of an application under Order VII, Rule 11 of the Code of Civil Procedure would not be of much significance. The plaint in question could not have been rejected under Order VII, Rule 11 of the Code of Civil Procedure. The Court at that stage could not have been gone into any disputed question of fact but while passing an order on grant of injunction indisputably it can. In other words, while making endeavours to find out a prima facie case, the court could take into consideration the extent of plaintiffs' share in the property, if any. It is no doubt true in view of several decisions of this Court, some of which has been referred to in Transmission Corpn. of A.P. Ltd (supra) that an appellate court would not ordinarily interfere with but then there are certain exceptions thereto. In Board of Control for Cricket in India and Another v. Netaji Cricket Club and Others [(2005) 4 SCC 741], it has been held: 95. Furthermore, the impugned order is interlocutory in nature. The order is not wholly without jurisdiction so as to warrant interference of this Court at this stage. The Division Bench of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings. In Board of Control for Cricket in India (supra), it is stated: 96. The conduct of the Board f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in a fixed deposit in a nationalized bank and the interest accruing thereupon shall enure to the benefit of successful party in the suit.. II. (i) The Appellants in Civil Appeal arising out of SLP (C) Nos. 843- 44 of 2006 may let out the commercial property in their possession. However, as offered by the Appellants themselves, they shall deposit 50% of the amount after deducting expenditure therefrom and the requisite amount of tax in a fixed deposit in a nationalized bank as may be directed by the learned Trial Judge. (ii) Even for the said purpose, a receiver may be appointed by the learned Trial Judge. III. It would be open to the learned Trial Judge to pass any other or further order if and when any occasion arises therefor. IV. We are informed that the plaintiffs have filed affidavits of their witnesses. The learned Trial Judge may complete the hearing of the suit as expeditiously as possible. Save and except for cogent reasons, the hearing of the suit may not be adjourned. We would request the learned Trial Judge to dispose of the suit expeditiously and preferably within six months from the date of receipt of a copy of this order. The appeals are allowed to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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